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What do the new CDC Guidelines for vaccinated people mean in the Workplace?

May 19, 2021

By Ernest B. Orsatti, Esquire

The Centers for Disease Control and Prevention (CDC) has updated its guidance for people who have been vaccinated. As of May 13, 2021, they advise:

Fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance. (Emphasis added.)

Fully vaccinated people can refrain from testing following a known exposure unless they are residents or employees of a correctional or detention facility or a homeless shelter.

This has raised a number of questions as to what this means in the workplace. OSHA is reviewing the new CDC guidelines but cautions “Under the OSH Act, employers are responsible for providing a safe and healthy workplace free from recognized hazards likely to cause death or serious physical harm. Implementing a workplace COVID-19 prevention program is the most effective way to mitigate the spread of COVID-19 at work.”

May an employer require its employees to be vaccinated?

Private employers can require employees to take safety measures, above and beyond those required by law, including vaccination.  In a union setting it would be a mandatory subject of bargaining.  In a non-union setting it can be required as a condition of continued employment or employees can be required to sign a waiver or agree to work under specific conditions to limit any risk imposed on other employees.  There are exceptions, however.  Employees can request exemptions for medical or religious reasons.  Public employers are restricted by constitutional limitations.

May an employer ask for proof that its employees have been vaccinated?

Private employers can ask and request proof of vaccinations from employees.  HIPAA does not apply to employers.  It only applies to health care providers.  However, we anticipate litigation may arise over employers asking for proof of vaccines, especially under the ADA which provides for reasonable accommodation of a medical condition, mental health condition, or disability.

At what percentage of a workforce’s overall vaccination may masks no longer be required in the workplace?

Pennsylvania adopted the recent CDC guidelines which allow fully vaccinated people to not wear masks or practice social distancing in most places, both indoors and outdoors.  Businesses and workplaces may still require masks to be worn as additional layer of protection for employees, clients and visitors who have underlying conditions according to Pennsylvania Acting Secretary of Health Alison Beam.  It is important to note that Pennsylvania’s mandate that unvaccinated people continue to wear masks and socially distance themselves remains in effect until 70% of the adult population is vaccinated.  Businesses may adopt their own policies which are more protective of the public safety.

Notwithstanding changes in mask wearing requirements, should an employer keep checking the temperatures of employees and visitors to its workplace upon their arrival?

Businesses should not want to allow persons with fevers into their places of business and have the right exclude them.

Should social distancing protocols continue to be enforced even if masks are no longer required?

Under the new CDC guidelines, social distancing and mask wearing are not required in areas where the persons are fully vaccinated.  To the extent that social distancing can be done practically and without undue hardship,  employers may do so.

Do vaccinated employees still need to test or quarantine if they are exposed to someone with COVID?

Most fully vaccinated people with no COVID-like symptoms do not need to quarantine, be restricted from work, or be tested following an exposure to someone with suspected or confirmed COVID-19, as their risk of infection is low. They should self-monitor however. The exception to this is correctional facilities, detention facilities and homeless shelters.

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